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Annulment Of Conviction

A person may apply to have a conviction or penalty annulled when the order was made in the Local Court in the defendant’s absence. “Annul” means “declare invalid”. It is possible to have a conviction or penalty that was made in the Local Court in the defendant’s absence annulled on the basis that they did not have the opportunity to enter a plea or to make submissions to the court prior to its decision.

When dealing with certain offences, the Local Court has the power to finalise the matter, record a conviction and impose a penalty in the defendant’s absence. There are many reasons why a person may not attend court. These include sickness and an error with the court date. Where this happens, it may be possible to annul the court’s decision and have the matter re-determined. The process is called an annulment application.

Can I Apply For An Annulment?

A person can apply for the annulment of a conviction or sentence imposed by the Local Court in their absence. The application is to be filed at the Local Court Registry where the original proceedings were held.

A person can apply only when they were not at court when the conviction was entered and/or the sentence imposed. They can also apply to the Minister and if the Minister is satisfied that there is doubt concerning the person’s guilt or liability the conviction may be annulled.

What Are The Requirements For An Annulment Application?

A person must apply within two years of the date of the conviction or sentence. Only one application for annulment can be made the same matter, unless permission is obtained from the Local Court. The application must be in writing and must be lodged with the Registry of the relevant Local Court.

Evidence in support of an annulment application can also be filed with the court, at the time of filing the annulment application, on a later date, or even on the date the application is heard. Evidence might include affidavits explaining why the defendant did not attend court, medical certificates or travel itineraries.

What Happens After I Lodge The Annulment Application?

The Registry will notify the person seeking the annulment of the date, time and place for hearing of the application. The Local Court can deal with the application whether the person is present or absent. The application may be heard in open court or in closed court, depending on the circumstances. When the court is dealing with an application, it may stay (postpone) the execution of the sentence, meaning that the sentence does not take effect until the application is determined.

When Must The Court Grant an Annulment?

The court must grant an annulment application where:

  • the defendant was not aware of the original Local Court proceedings until after they were completed, or
  • the defendant could not take part in the original proceedings because of an accident, illness, misadventure or other significant cause, or
  • it would otherwise be unjust (having regard to the circumstances of the case) not to grant an annulment,

What Is The Effect Of The Annulment?

Once the conviction or sentence has been annulled, it no longer has any effect. Any enforcement taken against a person will be reversed. If a fine is annulled, the person will receive a refund if they have already paid the fine. That being said, it is not the end of the matter. The court still needs to determine the charge and will require the person to enter a plea of guilty or not guilty. If the person enters a plea of guilty they can be sentenced at that time, or at a later date. If a person pleads not guilty, the matter will be adjourned for service of the brief of evidence and hearing.

If you require legal advice about annulments or any other legal matter, please contact Armstrong Legal.

Trudie Cameron

This article was written by Trudie Cameron

Trudie Cameron is the Practice Director of Criminal Law and is responsible for supervising and managing the New South Wales Criminal Law team in addition to her own caseload. She practices in both NSW and the ACT. Trudie is an accredited specialist in criminal law, practising exclusively in criminal and traffic law. Trudie defends clients charged with both state and...

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